Chapter 1 - The Senate and its constitutional role

Rotation of senators and terms of office

The term of senators from the states is six years commencing on 1 July following a periodical election. Six places from each state are contested at each alternate election. The Senate is thus a continuing chamber with no places being vacant except for casual vacancies.

The terms of senators elected in an election arising from a simultaneous dissolution date from 1 July preceding the election. Following such an election senators are divided into two classes: short-term senators whose terms expire on 30 June three years after their nominal date of commencement; and long-term senators whose terms expire on 30 June six years after their nominal date of commencement. It is the Senate itself which decides the method by which its members are divided into two classes and which senators are assigned to each class.[22]

The election of territory senators coincides with general elections for the House of Representatives, and their term expires and the new term begins on the day of the election.[23]

The six year fixed term of senators derives in part from the Senate’s character as a continuing House. It stems also from the view that an effective Parliament reflects the state of electoral opinion at different stages of its development rather than at a particular date. It is also a feature of the Senate’s character contributing to its role as a House of review and reflection.

The six year term and the principle of rotation were based on comparable provisions in the Constitution of the United States concerning the United States Senate. The objectives of those provisions as expounded by The Federalist were to counteract the dangers of instability which would arise if all places in the Congress were contested at biennial intervals, and to create conditions enabling some members of Congress to become expert in legislation and “the affairs and the comprehensive interests of their country”.[24] In the case of the United States Senate, with its special responsibilities concerning foreign relations, especially the ratification of treaties, the longer term was perceived to be an advantage.[25]

In the case of the Australian Senate the benefits of the distinctive arrangements for election and tenure are most readily observable in its extensive committee activity, in scrutiny of primary and subordinate legislation; in the regular examination of estimates; and in review of policy and administration.

The commencement date for Senate terms was originally 1 January; 1 July was fixed as the commencement date following amendment of the Constitution in 1906.

The provision for back-dating the commencement of senators’ terms following a simultaneous dissolution preserves the Senate’s continuity, with fixed terms for senators and a fixed starting point. It has, however, the effect of shortening the terms of both short and long-term senators by up to one year.

One incidental effect is that successive governments have brought forward dissolutions of the House of Representatives to coincide with periodical elections of senators, usually but not invariably those in the short-term class (1977 and 1984; 1955 was the exception). This effect of current constitutional provisions on the timing of elections could be reduced if the terms of state senators after simultaneous elections for the two Houses were deemed to commence on 1 July following such elections.[26]

In the past there have been four attempts to secure amendment of the Constitution to provide that the term of a senator, barring the particular circumstances of a simultaneous dissolution of the two Houses, should be that of two terms of the House of Representatives. Such an amendment would change the term of a senator from a fixed to a maximum term.

Although these amendments were defeated by the electors on three occasions (1974, 1977, 1984), the Constitutional Commission of 1986-88 recommended that the proposal should be revived. The Commission did not offer any particular reason for resubmission of the matter, yet again, to the electors, merely stating that the reasons for so doing in the past “remain convincing”.[27] In 1988 the proposal, with maximum terms of four years, was again put to a referendum and again defeated, in this instance by one of the largest margins in the history of referendums in Australia.

The proposal, if adopted, would fundamentally alter the nature of bicameralism in the Commonwealth Parliament by removing one of its essential features, the principle of fixed, periodical elections, with a fixed, autonomous electoral cycle for the Senate. To lock the Senate into an electoral cycle dependent upon general elections for the House of Representatives, which can occur at any time, would significantly weaken its position as an independent house, and dilute its capacity to embrace electoral opinion which goes unrepresented in the method used for electing members of the House of Representatives. It would also remove a significant restraint on governments holding early elections for partisan reasons. The overwhelming weight of argument supports retention of the present constitutional arrangements which allow for, but do not compel, holding periodical elections for the Senate simultaneously with general elections for the House of Representatives.